Parliament's Homework

Context: The rising questions over the constitutionality of various statutes (Article 370/farm laws) passed by the Parliament, demand a self-introspection by the Parliament.

3 Parliamentary mechanisms to check the constitutionality of a law:

1. Legal vetting and inter-ministerial consultation:Before passing the legislative baton to the Parliament.
2. Any member of the Parliament can oppose the introduction of a bill by stating that it initiates legislation outside the legislative competence of the Parliament.
   • Limited debate as the concerned house does not delve into constitutional niceties at this stage.
   • Members of Parliament (MPs) get opportunity to discuss and debate constitutionality of the bill.
   • On both occasions, the numbers that the treasury and opposition benches command on the house floor decides the outcome.
3. Examination of a bill by Parliamentary Committees: 
   • E.g. During Citizenship Amendment Bill (CAB) 2016, the joint committee explicitly asked the government whether the bill would violate the spirit of Articles 14 and 25 of the Constitution.
   • May draw constitutional expertise outside the law ministry: For e.g., the committee invited Fali Nariman and Ashok Desai to look on the National Judicial Appointments Commission Bill, 2013.

Associated concerns:

• Majority of government: results in no difficulty getting its legislative proposals through Parliament.
• Parliamentary committees ignored: Government bills do not automatically go to committees.

Way forward:

• Strengthen Committee mechanisms: like Sweden and Finland who pass their bills through two parliamentary committees - 
  1. One committee looks at the technical aspects of a proposed law;
  2. A specialised committee focuses on a bill's constitutional validity.

Conclusion: Lawmaking should not be a mechanical stamping of the government's legislative proposals but their careful examination by the Parliament.

• Justice Harlan Stone (later chief justice) referring to the judiciary wrote, "the only check upon our own exercise of power is our own sense of self-restraint". (same could be applied to the Parliament.)